Can a HOA be sued for not enforcing the deed...

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December 20, 2010|community living

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Q: Can a HOA be sued for not enforcing the deed restrictions in a subdivision? We live in a nice, older deed restricted community where owners have trailers, boats, remote buildings, and poorly maintain property. All of which are in violation of the deed restrictions found in the documents. DA- Clermont

A:It is possible for an owner to sue the board for non enforcement of the rules. Unless there are extreme situations, I do not recommend this action as it is expensive and time consuming. It also may cause disagreements between neighbors. If the board does not enforce the rules, as you describe, the value of homes in the community will drop in value. The failure will also make future enforcement almost impossible. The legal term is Laches (when rules are not timely enforced). The long term non-enforcement action provides a violator an excuse to evade corrections. It is a case of use the rules, use them or lose the right to enforce them. If the board is not performing their duty to enforce the rules, the members must vote in new members that will. A community that neglects to elect directors who will perform their duties, will find that they will pay with the loss of value in their homes.

Q:A member of our board of directors is a non-member of the association and is authorized by FS Chapter 617.0802, our Articles of Incorporation, and the association bylaws, which all state a director need not be a member of the corporation. A non-member of an association cannot vote in a member's meeting but can vote as a director.

How can a non-member holding a position as a director vote as a board member since all issues voted on by the Board of Directors affects all members of the Association? If a non-member cannot vote in a member meeting, what rationale and legal interpretation applies here that now allows a non-member to vote on matters affecting all members? KE- Palm City

A: We all first think that someone off the street is elected to the board and has no connection to the association. The non-member that you are addressing could be a renter, a family member of the owner, or maybe an investor that has an employee that is placed in a position to protect the investor's interest. Keeping in mind that a director has liability, obligations to the members, and a fiduciary duty, it would be lunacy for them to assume such responsibility unless they have an interest. I do not think any person would serve unless they have some goals or obligation to become a director. If you have such a person serving with goals that are not in compliance with the objective of the association, then why did the members elect them? Not enough volunteers to be candidates? That is your community's failure to be active and volunteer to become a candidate. I have seen directors that were not owners that put in more time and effort for the benefit of the association than any member. Do not discount a non-member as aloof. The key is a community that supports the programs of the association and serves by volunteering and voting.